Supreme Court exempts nuns from contraception rule for now

WASHINGTON — The Supreme Court said Friday that a group of Colorado nuns does not have to comply with the Affordable Care Act’s requirement that employers offer insurance plans that cover contraceptives while the nuns pursue a legal challenge of that portion of the law.

In a short and unsigned order, the court said the Little Sisters of the Poor must simply inform the Obama administration that they are a religious organization that should be exempt from the requirement.

The court order says the nuns do not have to sign a government form to which they objected because they said it authorizes a third party to provide the contraceptive coverage.

“This order should not be construed as an expression of the court’s views on the merits” of the legal challenge, the order said.

Groups across the country have filed suits against the law, and they are working their way through the federal courts. Almost all the groups that objected have received injunctions while the suits proceed, but the nuns did not.

The court’s one-paragraph order came after three weeks of what was likely a vigorous behind-the-scenes debate among the justices. It essentially delays a consideration of the merits of the challenges, and provides no legal reasoning for the compromise. It came without noted dissent.

“We’re very happy,” said Mark Rienzi, a Catholic University law professor who is representing the nuns on behalf of the Becket Fund for Religious Liberty.

The nuns employ about 75 people in their ministry to serve the elderly.

Rienzi said the nuns have never objected to stating their religious affiliation. But they said the required “self-certification” letters to the Department of Health and Human Services would make them complicit in the government’s plan to provide contraceptive services, because the law provides that third-party insurers still provide the coverage.

The Obama administration said that wasn’t true in the case of the nuns, because their insurance provider was another religious-affiliated group that did not offer contraceptive coverage.

“With the stroke of their own pen, applicants can secure for themselves the relief they seek from this court — an exemption from the requirements of the contraceptive-coverage provision,” Solicitor General Donald B. Verrilli Jr. told the court in a brief.

Groups supporting contraceptive coverage played down the importance of the court’s order.

“Religious groups have been exempt from the birth control benefit all along, and they still are,” said Cecile Richards, president of the Planned Parenthood Federation of America. “This is a case about paperwork, not religious liberty.”

More important, she said in the statement, are cases that the Supreme Court will consider in March. Those present the question of whether corporations must offer the contraceptive coverage if it conflicts with the religious beliefs of the companies’ owners.

The requirement that women receive contraceptive coverage without co-payment has sparked dozens of lawsuits.

Because religious entities such as churches are exempt, the legal battle has proceeded on two separate fronts. One involves religious-oriented nonprofit organizations, such as the nuns’, and the other concerns private companies.

The corporate battle is further along, and the Supreme Court in March will hear two such cases.

One was brought by the owners of Hobby Lobby, an arts-and-crafts chain that owner David Green says is run on Biblical principles. The full U.S. Court of Appeals for the 10th Circuit in Denver said forcing the company to comply with the contraceptive mandate would violate the Religious Freedom Restoration Act, a 1993 law providing special protections for religious expression.

The second case went the other way. A divided panel of the U.S. Court of Appeals for the 3rd Circuit in Philadelphia ruled that Conestoga Wood Specialties, a Pennsylvania cabinet-making company owned by a Mennonite family, must comply with the contraceptive mandate.

The litigation involving nonprofit organizations is not as far along. The suits were delayed because the administration has tried to come up with an accommodation for the groups.

Its offer was that organizations such as the Little Sisters could get out of the requirement to provide contraceptive coverage by submitting the self-certification form attesting to their objections. That form is designed to shift the responsibility for providing contraceptive coverage to the group’s insurer, which would either pick up the cost itself or seek government reimbursement.

But the Little Sisters said that even that compromises their religious freedom. They must either refuse and face fines, they said in their application for an injunction, or be complicit in “the government’s system to distribute and subsidize contraception.”

A district judge ruled against the Little Sisters, and its appeal is now before the 10th Circuit. The Supreme Court said its order would remain in effect until that appeals court rules.